VI. Violation of the Right to Non-Discrimination in
the Enjoyment of the Right to Family Unity: Article 5(c)

Convention Standards and Concerns

Although Article 1.2 of ICERD states that the treaty's
prohibition on discrimination does not apply to "distinctions, exclusions,
restrictions or preferences made by a State Party to this Convention between
citizens and non-citizens," the Committee has narrowed this exclusion. The
Committee has clarified that states parties are obligated to prohibit and
eliminate "racial discrimination in the enjoyment of civil, political, economic,
social, and cultural rights."[82]
Except for certain political rights, such as the right to participate in
elections, which may be confined to citizens, "[s]tates parties are under an
obligation to guarantee equality between citizens and non-citizens in the
enjoyment of these rights."[83]

As the Committee notes, any policies of differential
treatment between non-citizens and citizens will constitute discrimination "if
the criteria for such differentiation, judged in the light of the objectives
and purposes of the Convention, are not applied pursuant to a legitimate aim,
and are not proportional to the achievement of this aim."[84]
Human Rights Watch believes that the US government's failure to protect
the family unity and nonrefoulement
rights of non-citizens during deportation after a criminal conviction violates
this requirement of the treaty.

In particular, the policy of the United States to subject
hundreds of thousands of non-citizens to summary deportation after they have
finished serving their criminal sentences for a vast array of crimes directly
and unequivocally violates the Committee's instruction that:

Punishments targeted exclusively at non-nationals that are
additional to punishments under ordinary law, such as deportation … should be
imposed only in exceptional circumstances and in a proportionate manner, for
serious reasons related to public order which are stipulated in the law, and
should take into account the need to respect the private family life of those
concerned and the international protection to which they are entitled.[85]

Illustration: Failure to Protect the Family Unity
and Nonrefoulement Rights of Non-Citizens Deported for Crimes

In 1996, the United
States implemented legislation that requires
deportation of non-citizens convicted of a crime, for both serious and minor
offenses, after they have served their criminal sentence.[86]
Under this legislation, some 672,593 immigrants in the US, many of whom were
legal residents-some with families, who had lived in the US for decades, and who
had committed nonviolent offenses-have been deported from the country as shown
in Figure 4. As a result of these deportations, Human Rights Watch estimates
that approximately 1.6 million adults and children residing in the US
have been separated from their spouses and parents since 1997, when the 1996
laws went into effect.[87]
Based on the US Census, we estimate that out of these 1.6 million family
members left behind by deportees, 540,000 were US citizens by birth or
naturalization.

For reasons that are unclear, regular press updates by US
Immigration and Customs Enforcement (ICE) always tout the deportations of
violent criminals, but keep vague the other categories of immigrants deported.[89]
Despite the fact that the relevant laws were passed ten years ago, data on the
underlying convictions for deportations were released for the first time by ICE
at the end of 2006 for fiscal year 2005. Illustrated in figure 5, these data
show that 64.6 percent of immigrants were deported for non-violent offenses,
including non-violent theft offenses; 20.9 percent were deported for offenses
involving violence against people; and 14.7 percent were deported for
unspecified "other" crimes.

Applying these percentages from 2005 to the aggregate number
of persons deported allows us to estimate that 434,495, or nearly a half
million people, were non-violent offenders deported from the United States in the 10 years since
the 1996 laws went into effect. In addition, we can estimate that 140,572
people were deported during that same decade for violent offenses. Based on
these data, the deportations appear to fail the CERD requirement that
deportation should only be imposed "in exceptional circumstances and in a
proportionate manner."[91]

In fact, the 1996 immigration law and its implementation
violate the United States'
obligations under ICERD in at least three ways. First, non-citizens are
deported without any administrative or judicial oversight that would allow an
assessment of proportionality. Second, these laws apply not only to serious
crimes, but also to minor offenses, and do not take into account whether the
non-citizen has lived in the US
legally for decades, building a home and family. This omission violates the
Committee's instructions to "take into account the need to respect the private
family life of those concerned" prior to deportation.[92]
Finally, deportation proceedings do not allow for consideration of whether a
non-citizen has a well founded fear of persecution upon return to his or her
country of origin.

ICERD makes clear that differential treatment between
citizens and non-citizens may only occur if it is pursuant to a legitimate aim
and proportional to the achievement of that aim.[93] While
the United States
may have legitimate reasons for seeking the deportation of individuals
convicted of crimes who may pose a danger to society, there is no process under
which the necessity or proportionality of the deportation can be assessed. The
1996 legislation prevents judges from considering whether minor crimes should
not trigger deportation, whether a particular non-citizen shows evidence of
rehabilitation, or if there are other compelling reasons for an individual
non-citizen to remain in the US.[94]

The Committee has made clear that deportations "should be
imposed only in exceptional circumstances … and should take into account the
need to respect the private family life of those concerned."[95]
The legislation does not allow judges to strike a balance between the reasons
for deportation-i.e., the seriousness of the crime-and the length and breadth
of an immigrant's ties to the United
States. While it may be fair, for example,
to deport an immigrant who commits murder within six months of his arrival in
the US, it may be grossly unfair to deport a parent of young children who has
lived legally in the US for 30 years and who was convicted of passing a forged
check. Again, there is absolutely no procedure under US immigration law for most
non-citizens convicted of crimes to bring these issues before a judge for
review.[96]

Finally, CERD General Recommendation 31 states that the US
should ensure that deportees will not be sent back to a country or territory
where they would run the risk of serious violations of their human rights.[97]
But many non-citizens are subject to deportation after serving their criminal
sentences without consideration of the risk that they would be returned to
persecution. These non-citizens have no opportunity in deportation proceedings
to assert a fear of persecution based on one of the grounds that may establish
refugee status. This is true despite the fact that under international law it
is expected that judges will have an opportunity to consider not only the
individual's fear of persecution, but also whether his or her criminal
conviction is particularly serious as well as whether he or she "constitutes a
danger to the community."[98]
None of these factors can be weighed in deportation proceedings for
non-citizens convicted of certain crimes in the United States.

Deportation is a necessary part of every country's
enforcement of its immigration laws. But as explicitly discussed in the
Committee's General Recommendations 30 and 31, the exercise of the power to
deport must be governed by fair laws narrowly tailored to protect legitimate
national interests.

Human rights law recognizes that the privilege of living in
any country as a non-citizen may be conditional upon obeying that country's
laws. However, a country like the United States cannot withdraw that
privilege without protecting the human rights of the immigrants it previously
allowed to enter. Human rights law requires a fair hearing in which family ties
and other connections to an immigrant's host country are weighed against that
country's interest in deporting him. The 1951 Convention Relating to the Status
of Refugees and its related Protocol also require a hearing into a
non-citizen's well founded fear of persecution prior to deportation.
Unfortunately, that is precisely what US immigration law fails to do.

In this respect, the United States is far out of step
with international human rights standards, including its obligations under
ICERD.

Recommendations to the Committee

Urge
the United States to
reinstate hearings that would allow immigrants facing deportation the
chance to ask a judge to allow them to remain in the United States when their crimes are
relatively minor and their connections (especially their family ties) to
the United States
are strong.

Require
the United States to
uphold its obligations to refugees by giving all persons subject to
deportation an opportunity to raise their fears of persecution, and
ensuring that only refugees who have been convicted of a "particularly
serious crime" and who
"constitute a danger to the community" of the United States may be returned
to places where they fear persecution.

Require
the federal government to evaluate the kinds of crimes that render people
deportable in order to prevent permanent and mandatory banishment from the
United States
for relatively minor non-violent crimes like theft or drug possession.

[88] Source: for FY 1996 and FY 1997, Immigration
and Naturalization Service (INS), "Enforcement Operations, Aliens Removed by
Criminal Status and Region and Selected Country of Nationality," Statistical Yearbook 1997, table 65, p.
185. For all subsequent years, Department of Homeland Security (DHS), "Yearbook
of Immigration Statistics 2005," http://www.dhs.gov/ximgtn/statistics/publications/YrBk05En.shtm
(accessed February 1, 2008), table 41 and table 42. According to ICE, tables 41
and 42 should be added to calculate the total number of non-citizens removed on
criminal grounds. Human Rights Watch telephone interview with Elizabeth M.
Grieco, Ph.D., Office of Immigration Statistics, Department of Homeland
Security, Washington, D.C., March 1, 2007.

[89] For example, one ICE press release highlights
the deportations of two men: a Brazilian who was convicted of assault with a
deadly weapon, domestic assault and unlawful possession of a firearm; and a
Jamaican who was deported for "unnatural acts upon a child; providing obscene
materials to minors; assault and battery; breaking and entering, larceny and possession
of a controlled substance." But the agency failed to describe the crimes of the
756 other immigrants deported during the same ICE operation. "ICE Removes 758
Criminal Aliens from 5-State Area During July," Office of the Press Secretary,
Immigration and Customs Enforcement Public Affairs press release, August 15,
2006, www.ice.gov/pi/news/newsreleases/articles/060815neworleans.htm
(accessed May 30, 2007).